Law Blog Lawyer of the Day: Miami’s Rick Diaz

We spend lots of time gawking at the stars of the Supreme Court bar. But what about the lawyer who finds him or herself standing before the justices for the first time? What’s that like? Last week we spoke with Rick Diaz, an accidental Supreme Court advocate if there ever was one. Diaz represents Michael Williams, who is challenging the constitutionality of a federal child-pornography statute. He argued before the court last week. (Click here for background on the case.)

Give me your CV.

I was born in Miami, graduated from Miami-Dade Community College, and earned my undergraduate and law degrees at St. Thomas University. While in school I was a policeman in Dade County from 1980 to 1989. I spent one year with a civil-litigation boutique in Miami and then went out on my own in 1989. My practice heavily concentrates in criminal defense with a focus on the federal side.

Tell us how you got this case.

The defendant Michael Williams was a court security officer at the federal courthouse in Miami. We were friendly because we had a common past – we both had worked for the Metro-Dade police department. He was indicted in April of ’04 and asked me to represent him.

How did this become a constitutional case?

There were two counts in the indictment. One count was for pandering child pornography and the other was for possession. Since it was my first child pornography case I went and looked up the statutes. The possession statute was as clear as the pandering statute was confusing. I read it two or three more times and realized that if I was having difficulty with it then maybe it was too vague. I reflected back to law school and remembered the constitutional concept of void for vagueness, and I also remembered that when I was a cop an arrestee had challenged a drug statute on vagueness grounds. I did some research on the issue which led me to the constitutional concept called overbreadth. I became satisfied that the statute was very problematic from a First Amendment standpoint.

Then what?

I tried to get the prosecutor to throw that count out in exchange for Mr. Williams to plead guilty to the possession count, to which we had no defense. Both statutes carried the identical five-year sentences which had to run concurrently. The only thing the government would have gotten in making him plead guilty to the pandering count was an additional $100 court cost. But the prosecutor refused so I filed a motion in Miami federal court to dismiss the pandering count on the grounds it was unconstitutionally vague and overbroad. The district court denied the motion without a hearing and argument. We appealed to the Eleventh Circuit. Mr. Williams had run out of funds but at this point it became a matter of principle.

Did you argue before the Eleventh Circuit?

A lawyer in my office asked to do the argument and so she argued the case. Surprisingly, the Eleventh Circuit reversed the district court and found the statute unconstitutional. At that point I thought we were done but the government decided to forge ahead and appeal to the Supreme Court, which granted cert this past spring, again to my surprise. Then the case took on a life of its own.

Did you ever consider handing over the case to someone else?

I got calls from all over the country from lawyers who called themselves First Amendment advocates. Some graciously offered help, others aggressively tried to take the case away from me. One lawyer accused me of not being an appellate advocate and threatened to contact my client and directly to solicit the case from him. So I wrote to Mr. Williams and I honestly told him that I was neither an appellate advocate nor a First Amendment expert but asked him what he wanted me to do. He essentially told me, “I’ve known you for 20 years as a street cop and I’ve seen you work in the federal court building for over 10 years. There’s nobody I want arguing my case in front of the Supreme Court except you.”

How’d you prepare?

I bought the book “The Nine” to learn about the judges, I profiled them all on Google, I read and listened to the hearing and transcript of a prior case on the prior child porn pandering statute. I read and briefed every case cited in all the briefs. I visited the Supreme Court and watched oral arguments in other cases. I then did several moots with other lawyers, including one at Sidley Austin in D.C., which helped immensely. Sidley did it for free, though it cost a few stone crabs from Joe’s. Two nights before, I took a three-hour night tour by myself through D.C. I wanted to take in the grandeur of the city and what it was that was at the core of what I was about to do.

Did you buy a special suit?

I went to my personal tailor in Coral Gables and bought a handmade Canali suit, custom-made white shirt and, after going through about 500 ties, I picked what I thought was the most spectacular tie for the occasion. It was a Ferragamo navy-blue tie with a hint of white and burgundy. It was smart-looking. (See picture of Diaz standing outside the Supreme Court just after the argument.)

Tell us about oral argument day.

When I walked into the courtroom I was feeling two things: pride and humility. It was very humbling to realize what was about to happen. When I got there I opened up my outline and started looking at it but realized if I didn’t know something by then I wasn’t going to learn it in the next thirty minutes. So I closed it and watched the clock wind down. At two minutes before ten, I closed my eyes and tried to communicate with my deceased parents and, as ridiculous as this may sound, I heard my father tell me, “Remember who you are.” And then the judges took the bench.

How’d the argument go?

I had memorized my opening comments to the court so that was the easy part. After that, everything becomes instinctive. You listen to the question and you answer it and try to be as responsive as you can. And this is where the moot court and all of the reading and preparation kicks in. I’d give myself a B+/A-. It’s easy to go back and read the transcript and say I wish I would’ve answered this differently. It’s not that I gave the wrong answer it’s that I would’ve given a better answer.

So how do you think the justices will rule?

Most people think that they will reverse the Eleventh Circuit and uphold the statute, but I’m not so sure.

Summarize the experience.

It’s lawyering at the Olympics. If I don’t get the gold I’m definitely going to get the silver. And I never thought I’d make the Olympics.

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